Lord Wallace of Tankerness: My Lords, I apologise that I was not able to speak at Second Reading. I shall speak in support of Amendment 42, which was tabled by the noble Baroness, Lady Thornton, to which I have added my name. It is about a duty to consult the devolved Administrations before making regulations under this Act.
My noble friend Lady Humphries has already given a flavour of the important constitutional and devolution issues which arise as a result of these provisions. As she indicated, unlike the Welsh Assembly, the Scottish Parliament has passed a legislative consent Motion in respect of the Bill—quite exceptionally, because the position of the Scottish Government is generally to withhold consent to legislation in respect of EU withdrawal, but they took the view that they would give consent if there were exceptional circumstances. In this case they believe there are exceptional   circumstances. That view was supported by the relevant parliamentary committee in the Scottish Parliament, and last month by the Scottish Parliament as a whole.
This is a relatively modest amendment requiring consultation. The Explanatory Memorandum that accompanies this Bill makes clear in annexe A that there are areas, specifically in Clauses 1, 2 and 4, where a legislative consent Motion is required. It is very obvious, because here we have a situation where international agreements are made by a member state, in this case the United Kingdom, with other countries in respect of a subject matter that is devolved.
I am sure the Minister will be very familiar with Section 2CB of the National Health Service (Scotland) Act 1978, which refers to the functions of health boards outside Scotland. It states:
“Where it is the function of a Health Board to provide or to secure the provision of a service, the Health Board may secure the provision of that service outside Scotland … For the purposes of securing the provision of any service referred to in subsection (1), a Health Board may make such arrangements for the provision of the service as they think fit (and may in particular make contractual arrangements with any person) … Anything done by a Health Board in pursuance of subsection (1) or (2) is to be regarded as done in exercise of functions of the Scottish Ministers conferred on the Health Board by an order under section 2(1)(a)”.
The annotations on the very helpful legislative website indicate that these sections originate in EEA treatment costs regulations. Clearly this impinges on responsibilities devolved to Scottish Ministers. As I said, the legislative consent Motion was passed by the Scottish Parliament.
My noble friend Lady Humphries mentioned the Constitution Committee. Paragraph 13 of its report on the Bill states:
“We recommend that the Government sets out how it intends to manage overlapping competences in relation to this Bill and other policy areas”.
When the Minister replies, it would be very useful if she could give us some indication of how the UK Government intend to do that. Obviously there are areas—for example, a regulation specifying or describing evidential or administrative requirements or processes—that could have an impact on administrative processes within the responsibility of the Scottish Government or health boards in Scotland.
It is instructive that, when the Health and Sports Committee of the Scottish Parliament took evidence in relation to the legislative consent Motion from Mr Paul Gray, who was the director-general for health and social care and chief executive of NHS Scotland until he stood down this month, he said:
“The Scottish ministers and the UK Government agree that the bill impacts on the devolved function of health. As a result, it requires the consent of the Scottish Parliament. UK Government officials have indicated that the bill will be amended to recognise the responsibility of the devolved Administrations. The proposal is to introduce a requirement to consult the devolved Administrations and to agree a memorandum of understanding with them before regulations can be introduced that impact on devolved matters”.
Subsequently, in answer to questions, Mr Gray went on to say:
“As I said in my opening statement, UK Government officials have indicated that the bill will be amended to recognise the responsibility of the devolved Administrations. The particular point to which I would draw the committee’s attention is the  requirement to consult devolved Administrations and agree a memorandum of understanding before regulations can be introduced that impact on devolved matters. The distance that I can go, based on what we have—and bearing in mind that these are proposals—is to say that the current proposal is that there is a requirement to consult the devolved Administrations before regulations can be introduced”.
That was evidence given by the then chief executive of the health service in Scotland to a Scottish parliamentary committee, undoubtedly based on good faith from discussions he had had with officials at UK government level. This amendment seeks to give some substance to what would appear to have been agreed at official level, and I hope that the Minister feels able to accept it.